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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the August 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to the end of July 2011.  Please contact NACWA’s Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions or information on the Update topics.

Top Story

General Support for Development of SSO Rule Emerges from EPA Facilitated Workshop

The U.S. Environmental Protection Agency (EPA) workshop on sanitary sewer overflows (SSOs) held July 14-15 in Washington, D.C., resulted in agreement from participants on the need for a comprehensive SSO rule and on many of the issues that would be addressed in a rule.  NACWA’s representatives for the facilitated discussion – Ben Horenstein, Manager of Environmental Services at the East Bay Municipal Utility District and Co-Chair of NACWA’s Facility & Collection System Committee, and Lisa Hollander, Special Liaison for Legislative & Regulatory Affairs at the Northeast Ohio Regional Sewer District and Chair of NACWA’s Legal Affairs Committee – described the uncertainty facing utilities without a SSO rule in place and the practical issues involved with operating and maintaining a separate sanitary sewer system.  The other participants in the facilitated discussion were the Water Environment Federation (WEF), American Rivers, the Natural Resources Defense Council (NRDC), Clean Water Action, the Cahaba River Society, the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), and the League of Cities.  Other NACWA members also attended the workshop and provided their perspectives during the public comment sessions.

The workshop included discussion on five main topics:  reporting, recordkeeping, and notification; capacity, management, operation, and maintenance (MOM) programs; permitting of satellite collection systems; SSOs caused by “extreme” circumstances; and parallel treatment of peak wet weather flows.  All of the groups supported public notification for SSOs that could be a public health hazard – along with requirements for reporting and recordkeeping that would help utilities and permitting authorities to learn more about problems in the systems.  There was also general agreement from all involved that a key goal for any SSO rule was certainty that sanitary systems can be brought into compliance, and that MOM programs can play an important role in determining compliance.  There was also significant discussion on the role of enforcement and NACWA made it clear that a rule needed to ensure that such actions could not be brought where the utility is doing its job to prevent overflows pursuant to the rule.  The NGO groups, however, referred to enforcement discretion and asked for examples of when enforcement actions have been taken against utilities for SSOs that are caused by events outside of the utility’s control.

The lively discussion of parallel treatment of peak wet weather flows, or “blending,” concluded with Jim Hanlon, Director of EPA’s Office of Wastewater Management, proposing that different tiers of treatment be considered in a SSO rule.  The first tier would be no or low-level parallel treatment, which would be subject to the provisions of the 2005 negotiated policy, including a no feasible alternatives analysis.  The next tier would be the more advanced high-rate treatments using physical-chemical processes that do not quite meet current secondary treatment requirements, which would need less scrutiny to receive approval and would not be subject to a no feasible alternatives analysis every five years.  Alternative treatment technologies that meet current secondary requirements would automatically be accepted.  The participants in the facilitated discussion all seemed interested in this tiered approach.

The workshop concluded with all participants expressing satisfaction with the discussion, and most noting that there were more points of agreement than disagreement.  Hanlon said that “the discussion added value to our understanding of where the groups were at” regarding the issues involved with a rule.  EPA and the other groups made statements expressing the desire to move forward on a rule, with Hanlon saying, “This is as important to us as it is to you.”  During the Facility & Collection System Committee meeting at the NACWA Summer Conference, Hanlon reiterated this commitment from EPA to move forward on a SSO rule, although he could not give a timeline for action by the Agency.  NACWA also met with Hanlon during the Summer Conference to discuss next steps and to obtain any further details on the potential aspects of the two-tiered approach to parallel treatment of peak flows and how peak excess flow treatment facilities (PEFTFs) could be included in a rule.

NACWA will be reaching out to the other groups involved in the EPA workshop to try to develop consensus on the major aspects of an SSO rule, and will present areas of consensus to EPA.  NACWA will keep members informed of progress on this effort and will notify members when EPA makes any decisions regarding development of a rule.

Air Quality

NACWA Advocacy Obtains Key Biogenic Emissions Deferral in EPA Final Rule

NACWA advocacy resulted in a significant, beneficial change for utilities in EPA’s final rule that defers biogenic carbon dioxide emissions from the Clean Air Act (CAA) permitting requirements for greenhouse gases (GHGs).  CAA regulation of GHG emissions began this year as the Tailoring Rule incrementally subjects GHG emissions to Title V and Prevention of Significant Deterioration (PSD) permitting requirements, starting with the largest sources and bringing in other sources over time.  Biogenic GHGs are usually considered part of the natural carbon cycle and are exempt from all major regulatory and policy programs, including the Intergovernmental Panel on Climate Change (IPCC) and California’s cap-and-trade program.  However, the Tailoring Rule did not address how biogenic emissions should be handled.

EPA proposed a rule in March – inclusive of emissions from combustion of biogas and biosolids – to defer biogenic emissions from CAA requirements for three years while it studied the issue.  NACWA’s comments on the proposed rule asked EPA to be more specific about the emissions from wastewater treatment that would be deferred from CAA requirements.  EPA responded to NACWA’s comments and the final rule, which was signed on July 1, now also defers carbon dioxide (CO2) from wastewater treatment processes.  States will still need to incorporate this deferral into their permitting programs, and if they do, the deferral of biogenic emissions should mean that utilities will not fall under the Title V and PSD permitting requirements for the next three years.  Any utilities that expect their emissions to meet the thresholds for these requirements are requested to notify Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA Nominee Considered for EPA Science Advisory Board Expert Panel
EPA is forming a Science Advisory Board (SAB) expert panel to study biogenic emissions during the next three years and will make recommendations to help EPA to determine if its deferral of biogenic emissions from CAA regulations should be made permanent.  NACWA nominated Dr. Nancy Love from the University of Michigan to serve on this expert panel.  She is the only wastewater expert to make the EPA “short list” for the panel and NACWA submitted a letter to EPA confirming the Association’s support of her selection to the panel and stating the importance of placing a wastewater expert on the panel.  As stated in the letter, “The majority of GHG emissions produced by publicly owned treatment works (POTWs) are biogenic… Whether or not this deferral [of biogenic emissions from CAA permitting] is made permanent will have a significant impact on permitting requirements for POTWs.”  NACWA will keep members informed of new developments with the SAB expert panel and EPA actions on GHG emissions.

Biosolids Management

NACWA Meets with Top EPA Attorneys, Key EPA Staff on Incineration

As key deadlines approach in NACWA’s legal challenge to the sewage sludge incinerator (SSI) Clean Air Act (CAA) emissions standards that were finalized in March, Association staff met on July 28 with EPA’s Deputy General Counsel Avi Garbow and key members of his staff to discuss NACWA’s petition for reconsideration and stay of the final rule.  NACWA filed its petition with EPA in late May and to date has received little indication regarding EPA’s reactions or plans for responding to the petition.  While the administrative petition is separate from NACWA’s legal challenge before the U.S. Court of Appeals for the D.C. Circuit, EPA’s response – or lack thereof – does have important implications for the Association’s legal strategy.  The meeting with Garbow focused on NACWA’s assertion that Congress intended SSIs to be regulated under Section 112 of the CAA and that the Act itself clearly directs EPA to develop standards for SSIs under Section 112, not Section 129, the more stringent section of the Act that EPA used to develop the final SSI standards.  NACWA also underscored the fundamental flaws that are pervasive in the final 129 rule and the impacts the rule will have on incineration.

On July 13, NACWA staff also met with key EPA air office staff to discuss the petition and the technical flaws with the final standards, and to determine if the Agency had made any preliminary determinations regarding the merits of NACWA’s request for reconsideration.  At that time, EPA staff indicated that they were still in the process of reviewing the petition and had yet to make any decisions.  Staff from EPA’s air and general counsel offices are now working together to formulate the Agency’s position on the technical and legal issues NACWA has been raising and whether to grant the Association’s petition and request for a stay of the final rule.

If EPA does not grant NACWA’s administrative petition for reconsideration and stay of the final rule, the next step in the litigation will be to file a legal Motion for Stay asking the court to judicially stay the rule until such time as the merits of the NACWA lawsuit challenging the rule are resolved.  The original court deadline for this filing was July 22, but because EPA is still reviewing NACWA’s administrative request, the court has extended the deadline until August 19.  NACWA is still optimistic that EPA will grant all or part of our reconsideration request along with a stay of the rule, but is prepared to proceed with its litigation if EPA does not agree to reconsider the entire final rule.  NACWA expects to have an indication from EPA on its decision around August 8 and will inform the membership of any developments.

Clean Water Act Jurisdiction

NACWA Comments on EPA/Army Corps Draft Clean Water Act Jurisdiction Guidance

On July 29 NACWA filed comments on the proposed joint agency guidance issued on April 27, 2011 by EPA and the U.S. Army Corps of Engineers (USACE) on the scope of jurisdictional waters protected by the Clean Water Act (CWA).  As NACWA stated in its comments, the Association “is broadly supportive of efforts to strengthen the water quality protection afforded by the CWA when done as part of a holistic watershed approach, and believes the proposed guidance takes some important steps in this direction. . . . Overall, NACWA believes the draft guidance addresses several key concerns of NACWA’s members but would benefit from some additional clarity.”  NACWA also stated that ultimately a full rulemaking process would be needed in order to ensure the issue of jurisdictional waters under the CWA has the benefit of full notice and comment procedures.

The comments also point out that should EPA proceed to finalize the draft guidance, it is critical that, like the draft, the final document preserve the existing regulatory exemption for waste treatment systems.  The final guidance should also include explicit exemptions for municipal stormwater collection systems and groundwater from CWA jurisdictional coverage.  NACWA’s comments also outline concerns raised by NACWA members with the potential for certain types of ditches, as well as wetlands used in water reuse projects, to be deemed jurisdictional.  NACWA will keep members informed of developments on this guidance as they develop.

Climate Change

NACWA Supports Integrated Watershed Management for Climate Change Adaptation

NACWA submitted comments on July 15 to the White House’s Council on Environmental Quality (CEQ) report, National Action Plan: Priorities for Managing Freshwater Resources in a Changing Climate .  The report was prepared by the CEQ’s Interagency Climate Adaptation Task Force, which consists of representatives from several federal agencies, including EPA and the Department of Agriculture.  The six general recommendations in the Plan are to 1) establish a planning process, 2) improve water resources and climate data, 3) strengthen vulnerability assessment, 4) improve water use efficiency, 5) support integrated water resources management, and 6) educate water resource managers.

The Plan did contain any new or innovative recommendations regarding water resource management or wastewater treatment issues.  In its comment letter, NACWA agreed that improved data is needed to improve wastewater utility adaptation to climate change impacts because the uncertainty in changes to temperature, precipitation, and sea level make it difficult to include these impacts in long-range planning.  NACWA also agreed that integrated water resources management must be supported and “the best way to accomplish this is through a holistic, watershed-based approach that allows local decisions about the best ways to adapt to climate change and improve water quality.”  In addition, NACWA’s comments encouraged recognition of wastewater as a resource, which includes water reuse, using biosolids for fertilizer, and producing energy with biosolids and biogas.  NACWA will continue to provide input to the CEQ on climate change adaptation and keep members informed of how adaptation is included in federal policies.

Security and Emergency Preparedness

Water Sector Addressing Gaps between Security Standard and Vulnerability Assessment Tools

A Critical Infrastructure Protection Advisory Council (CIPAC) workgroup met July 26-28 to address the gaps between the J100-10 standard, Risk Analysis and Management for Critical Asset Protection (RAMCAP®) Standard for Risk and Resilience Management of Water and Wastewater Systems, and three water sector risk assessment methodology tools – ARAM-W, SEMS, and VSAT.  The J100-10 standard was developed by ASME-ITI and the American Water Works Association (AWWA), receiving final clearance from the American National Standards Institute (ANSI) in 2010.  Representatives from two NACWA member agencies participate in the committee that developed the standard.

The CIPAC workgroup was formed at the request of the Water Sector Coordinating Council (WSCC), after the release of a comprehensive study sponsored by the Water Research Foundation and the Association of Metropolitan Water Agencies, Gap Assessment for ASME-ITI/AWWA J100-10 Standard and Leading Vulnerability Assessment Tools.  Following two preparatory conference calls, the workgroup met in person to examine the gaps and make prioritized recommendations on modifications to the three tools to bring them into alignment with the J100-10 standard.  Topics addressed included proximity and dependency hazards, natural hazards, and worst case consequence analysis for critical assets.  The final recommendations of the workgroup will be used by EPA to determine the feasibility of modifying each of the three vulnerability assessment tools to make them compliant with the J100-10 standard.  The WSCC will also consider the recommendations of the workgroup in determining any follow-up actions needed from the Council.  The J100-10 standard and the workgroup will be discussed during a web meeting of the Security and Emergency Preparedness Committee this fall.

Stormwater

Key Stakeholder Groups Submit Letter to EPA on Stormwater Rule-Making Process

NACWA collaborated with a number of other stakeholder groups in sending a letter to EPA on July 8 regarding the Agency’s post-construction stormwater rulemaking process.  The letter outlined a number of areas of common concern with regard to the upcoming proposed rule and asked for additional clarification on certain elements that EPA may include in its initial proposal.  Signed jointly by NACWA, the Water Environment Federation (WEF), the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA), American Rivers, and the Natural Resources Defense Council (NRDC), the letter follows up on a meeting the five organizations held recently with key EPA staff working on the stormwater rule.  In particular, the letter requests that EPA provide clarification on how a retrofit requirement may be included in the final rule, which is a critical issue for NACWA and its municipal members.  The letter is consistent with NACWA’s previous statements on the rulemaking process but also emphasizes to EPA the broad stakeholder interest in the eventual rule proposal, which is expected to be released in late September.  NACWA played an important role in helping to draft the joint stakeholder letter and looks forward to working jointly with an array of stakeholders on this important issue once the proposal is published.